J. B. MEHTA, J. ( 1 ) THIS group of petitions is referred to this Bench to decide the question whether the petition abates on the grounds mentioned in the affidavit of the respondents. These petitioner were filed by the peti- tioner-mill companies which are cotton textile units manufacturing blended yarn which became dutiable for the first time under Tariff Item 18-E which was added on March 16 1972 in the Central Excise and Salt Act 1944 (thereinafter referred to as the Act ). It is the case of the petitioners that blended yarn was coated with sizing materials to impart strength to the yarn in the weaving process in all these composite mills and in that process the weight of the blended yarn increased by some 12 to 14 per cent. It is the case of the petitioners that blended yarn remained blended yarn even after the sizing process. The excise duly was paid on the sizing materials. In all these mills the duty was charged by the excise authorities under Tariff Item 18-E on weight basis per kilogram of unsized yarn that is to say at the spindle point. However by the Trade Notice issued by the Deputy Collector of Central Excise No. 195/76 dated August 9 1976 a change of basis had been adopted. The said made notice had been comm- unicated by the Millowners Association to these petitioner-mills on August 14 1976 by Annexure A as under:a question has arisen whether central excise duty on yarn all sorts (N. E. S) failing under Tariff item No. 18-E of the Central Excise Tariff manufactured in a compo-- site mill and used in the weaving of fabrics in the same mill should be charged at spindle stage or at the stage of cones bobbins and beams etc. ( 2 ) IT is decided that the accounting of the yarn in R. G. 1 Register may be made at the spindle point but for E. B. 4 Register or assessment of duty the weight of the yarn at the stage of cones bobbins and beams etc. should be taken into account. ( 3 ) ALL trade associations chamber of commerce and the members of the Regional Advisory Committee are requested to bring this to the notice of their members/ manufacturers. should be taken into account. ( 3 ) ALL trade associations chamber of commerce and the members of the Regional Advisory Committee are requested to bring this to the notice of their members/ manufacturers. Thereafter the Superintendent of Central Excise by the letter at Annexure B dated August 28 1976 informed all the units on this question of assessment of duty on yarn used in composite textile mills for the manufacture of fabrics by giving the following instructions: your attention is invited to M. P. Trade Notice No. 95 76 (Yarn NES No. 2/76 dated 9-8-76. 2 As directed in para 2 of the said trade notice the accounting of the Yarn in R. G. I Register may be made at the spindle point but for E. 13. 4 Register or assessment of duty the weight on the yarn at the stage of cone bobbins and beams etc. should be taken into account. (3) You are therefore requested to get authentication in E. B. 4 Register imme- diately and maintain the same as per the above trade notice. The Superintendent also addressed a further communication finally at Annexure F to the petitioner-mills on the subject of assessment of this NES yarn as under: 4 you are already directed by me that for purpose of assessment of the yam in question the weight of the yarn should be taken at cones beams bobbins stage etc. but so far I find that you pay duty on the yarn in question at spindle stage. So please adopt the procedure for payment of duty by the stages mentioned above when the yarn is actually taken for use. You are further requested to furnish this office the quantity of sizing materials used for sizing the yarn for the following period:4 to 31-8-76. Sept. 76. You are hereby instructed to furnish the particulars of sizing materials used every month. Please treat this as must urgent. 2 It is the case of the petitioners that since the issue of the licence by the excise authorities for the manufacture of these polyester blended textiles the petitioner had been consistently assessed to excise duty on yarn at spindle point and they maintained personal ledger account as provided by the Act and the Rules under the relevant self-assessment procedure. 2 It is the case of the petitioners that since the issue of the licence by the excise authorities for the manufacture of these polyester blended textiles the petitioner had been consistently assessed to excise duty on yarn at spindle point and they maintained personal ledger account as provided by the Act and the Rules under the relevant self-assessment procedure. This Trade Notice is challenged as totally null and void and of no legal effect in these petitions whore a further relief is claimed res- training the respondents authorities from collection or debiting any excise duty from the petitioners or in their personal ledger account on the basis of the weight of yarn manufactured by the petitioners after sizing instead of at the spindle point or from enforcing the letter at Annexure F dated October 19 19763 The relevant Tariff Item 18-E runs as under:- 18 Yarn All Sorts. N. E. S. Yarn all sorts not elsewhere specified in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. Per Kg of yarn. (1 ). . . . . . . . . . . . (2) Yarn containing partly synthetic staple fibre of non-cellulosic origin other than acrylic fibre and partly any other fibre or fibres (excluding wool) if the non- cellulosic fibre content by weight of such yarn is (i) 50 per cent or more 24-00 (ii) less than 50 pair cent but not less than 25 per cent. 19-00 (iii) less than 95 per cent but more than 10 per cent. 16-00 (iv) 10 per cent or less 12-00. The petitioners case is that as this blended yarn remained yarn even after sizing process they were paying excise duty on the basis of the weight per kilogram under Tariff Item 18-E (2) (ii) and this basis was sought to be changed because of the aforesaid illegal ultra vires Trade Notice issued by the Deputy Collector The petitioners had pointed out that even in the context of cotton yarn under Tariff Entry 18-A the con- trast was eloquent. Tariff Item 18-A runs as under: cotton twist yarn and thread all sorts containing not less than ninety per cent by weight of cotton calculated on the total fibre content whether sized or unsized in all forms including skeins hanks cops cones bobbins pirns spools reels cheeses balls or on warp beams in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. Tariff sub-item 18-A (1b) proviso stated as follows: the duty on sized twist yarn or thread shall be charged on the basis of its weight before sizing. It was also pointed out that even under the definition of the term manu- facture in sec. 2 (f) (iv) it was provided as under: in relation to goods comprised in item No. 18-A of the first Schedule includes sizing beaming warping wrapping winding or relating or any one or more of these processes or the conversion of any form of the said goods into another form as such goods. It was therefore urged by the petitioners that where the Legislature inte- nded this artificial meaning by inclusion of subsequent processes after the yarn had come into existence the relevant definition of manufacture under sec. 2 (f) (iv) had been amended as in Item 18-A but no such arti- ficial meaning was attracted for the Item 18-E and therefore the Legis- lative intention was obvious that Item 18-E would attract duty only at the stage of manufacture of yarn and subsequent processes carried out would not result in the duty being leviable on the weight of the said yarn at the subsequent stage. Therefore the aforesaid Trade Notice which sought to change the entire basis of assessment was challenged as illegal and without jurisdiction as it ran counter to the Tariff Item 18-E and to the fundamental principles of levy of excise on manufacture of excisable goods only. Though in the petitions it was stated that only such change of basis was made in these mills falling under the Baroda Collectorate and at Calcutta and at other places the old system continued at the time of hearing Mr. Vakharia had stated that throughout the country the authorities were insisting on this changed basis for levy of excise on this blanded yarn. Vakharia had stated that throughout the country the authorities were insisting on this changed basis for levy of excise on this blanded yarn. The petitioners had also urged that the impugned Trade Notice and the action of the authorities was without authority of law and therefore violated Article 31 (1) of the Constitution. The petitioners had through their Asso- ciation and the Federation gone up to the Central Board without any re- result and therefore these petitions had been filed. ( 4 ) IN the affidavit-in-reply this levy was sought to be supported as being on the true interpretation of Tariff Item 18-E. It was the plea of the authorities that the yarn manufactured at the spindle stage was not completely manufactured unless it was wound on cones bobbins and beams as per their requirements and that it was so wound only after the process of sizing was carried out on such warp yarn. Various provisions of the Act and the Rules had been relied upon and it was urged that the issue of unsized yarn for sizing could not be said to be the removal of yarn for use in the manufacture of any other commodity. The yarn even after sizing continued to be yarn and therefore the point of removal for pay- ment of duty would be the point at which the sized yarn was removed for the manufacture of fabrics which was another excisable commodity. It was denied that the yarn produced or manufactured by the petitioner at the spindle stage was sold or was capable of being used or sold in the market. It was stated to be not completely manufactured unless it was wound on cones bobbins and beams as per their requirements and it was so wound only after the process of sizing was carried out on such warp yarn. ( 5 ) IN the further affidavit this Trade Notice was said to be determi- ning the general principles as to how the duty was to be levied under Tariff Item No. 18-E and it was contended that the said general principles in the Trade Notice were not binding on the assessing authority. It was for the assessing authority to determine the question of assessment and while assessing the assessing authority may follow the guidelines given in the Trade Notice. It was for the assessing authority to determine the question of assessment and while assessing the assessing authority may follow the guidelines given in the Trade Notice. Therefore the Trade Notice did not give any cause of action but only the assessment would give the cause of action. It was con- tended therefore that assuming that the letter Annexure F dated October 19 1976 did not Contain any decision the petition was premature and the petitioners must exhaust the remedy available to them before the assessing authority. It was therefore contended that the petitioner having not exha- usted the remedies available under the Act there was a bar to entertain and decide this petition under Article 226 (3) and therefore the petition abated under sec. 58 (2) of the Constitution (Forty-Second Amendment) Act 1976 It is in view of this objection that this reference has come up to this larger Bench. ( 6 ) AT the outset we would set out the provision of Article 226 as it stood before the amendment and after the present amendment so far as these relevant clauses are concerned _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ Original Article 226 Amended Article 226 _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ 226 Notwithstanding anything in 226 (1 ). Notwithstanding anything in Article 32 every High Court shall have Article 32 but subject to the provisions power throughout the territories in rela- of Article 131a and Article 226a every tion to which it exercises jurisdiction to High Court shall have power throughout issue to any person or authority inclu- the territories in relation to which it ding in appropriate cases any Govern- exercises jurisdiction to issue to any person ment within those territories directions or authority including in appropriate orders or writs including writs in the cases any Government within those nature of habeas corpus mandamus territories directions orders or writs prohibition quo warranto and certiorari including writs in the nature of habeas or any of them for the enforcement of corpus mandamus prohibition quo any of the rights conferred by Part III warranto and certiorari or any of them - and for any other purpose. (a) for the enforcement of any of the (1a) The power conferred by clause (1) rights conferred by the provisions of to issue directions orders or writs to Part III; or any Government authority or person (b) for the redress of any injury of may also be exercised by any High Court substantial nature by reason of the exercising jurisdiction in relation to the contravention of any other provision territories within which the cause of of this Constitution or any provision action wholly or in part arises for the of any enactment or Ordinance or exercise of such power notwithstanding any order rule regulation bye-law that the seat of such Government or or other instrument made thereunder; authority or the residence of such per or son is not within those territories. (c) for the redress of any injury by rea- (2) The power conferred on a High son of any illegality in any proceedings Court by clause (1) or clause (IA) shall by or before any authority under any not be in derogation of the power con provision referred to in sub-clause (b) ferred on the Supreme Court by clause where such illegality has resulted in (2) of Article 32. substantial failure of justice. substantial failure of justice. (2) The power conferred by clause (1) to issue directions orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the original Article 226 Amended Article 226 _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ territories within which the cause of action wholly or in part arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. xxx xxx xxx sec. 58 (1) and (2) of the Forty-Second Amendment Act ran as under:- 58 (1) Notwithstanding anything contained in the Constitution every petition and under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on or in any proceedings relating no much petition before that day shall be dealt with in accordance with the provi- sions of Article 226 as substituted by sec. 38. (2) In particular and without prejudice to the generality of the provisions of sub-sec. (1) every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by sec. 38. (2) In particular and without prejudice to the generality of the provisions of sub-sec. (1) every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by sec. 38 if such petition had been made after the appointed day shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on or in any proceedings relating to such petition shall stand vacated: xxx xxx xxx xxx therefore the new amendment having been given retrospective effect so far as pending proceedings are concerned because of sec. 58 (2) every pending petition before the High Court which would not have been admi- tted under the provisions of Article 226 as now substituted by sec. 38 of the Forty-Second Amendment Act if such petition had been made after the appointed day that is 1 February 1977 must abate. Therefore the abatement question can be decided only by considering the short question whether under the amended Article ?26 the present petitions could have been admitted by this Court. ( 7 ) MR. Sorabji vehemently argued that the present group of petitions could have been admitted even under the Amended Article 226 for two reasons (1) because the petitions were for enforcement of the fundamental rights conferred on these mill companies under Article 31 (1) and to such petitions for enforcement of fundamental rights there would be no bar of Article 226 (3) attracted by consideration of existence of any other alternative remedy; and (2) that the Trade Notice in question being ultra vires the Act there was no appeal provided under sec 35 of the Act against the decision and the action of the authorities changing the entire basis of levy of excise under Tariff Item 18-E and therefore when such a tax was sought to be levied without any authority of law in violation of Article 265 and in plain violation of the provisions of the Act resulting in such substantial injuries to the tune of lakhs of rupees every month by such an ultra vires action of the authorities there was a substantial injury for redress of which the petitioners could not have filed any appeal and they were not bound to exhaust any alternative remedy. Such an action was without any hearing in plain violation of the principles of natural justice and therefore the petition being for address of injuries as a result of statutory contraveations or illegalities in statutory proceedings under clauses (b) and (c) of Article 296 (1) where there was substantial injury and substantial failure of justice by such ultra vires action of the authorities there was no question of the fetter under Article 226 (3) being attracted ( 8 ) THE whole scheme of the amendment will have to be interpreted in the light of the situation which was intended to be remedied and we would have to put that interpretation which would advance the object do the Parliament and would not frustrate the same. We would however have to determine the question on the settled legal principles of construction of such Constitutional provisions especially in the context of such a writ jurisdiction by way of judicial review as a Constitutional remedy of public law and the language would have to be strictly construed so as not to whittle down this extraordinary writ jurisdiction except to the extent that the Parliament has curtailed this jurisdiction. Even the statement of objects and reasons for these two relevant clauses 38 and 58 while amending Article 226 to a significant extent states as under:- while the High Courts continue to enjoy their power to enforce fundamental rights they cannot hereafter exercise jurisdiction in every case where there is an invasion of a legal right which so far they have been doing by virtue of the jurisdiction conferred by the expression for any other purpose which is being deleted now. Instead the High Courts are being vested with a restricted jurisdiction. They can exercise jurisdiction in (a) cases where there is a contravention of a statutory pro- vision causing substantial injury to the petitioner and (b) cases where there is an illegality resulting in substantial failure of justice. In either case the petitioner has to satisfy the Court that he has no other remedy. Provision is being made under clause 38 that the High Courts shall not issue an interim order ordinarily except upon notice to the other side and after giving the other side an opportunity to be heard. An exception is made in cases where the loss or damage to the petitioner cannot be compensated in money. Provision is being made under clause 38 that the High Courts shall not issue an interim order ordinarily except upon notice to the other side and after giving the other side an opportunity to be heard. An exception is made in cases where the loss or damage to the petitioner cannot be compensated in money. Notwithstanding this exception the High Courts shall have no power to grant an interim order in any case where the effect of such order is to delay any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprison ment or any action for the execution of any work/project of public utility etc provision is also being made in clause 58 to cover petitions pending in the High Courts. The jurisdiction under Article 226 (1) before the amendment was very wide as this writ jurisdiction could be exercised the only for enforcement of fund- mental rights but for other purposes and even where there was existence of other remedies it was only as a matter of self-restraint that this extraordinary jurisdiction was not exercised when adequate alternative relief existed by recourse to ordinary remedies created by the law. In ROHTAS INDUSTRIES V. ITS UNION A. I. R. 1976 S. C. 425 at P. 429 it was in terms held- the expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person- even a private individual - and be available for any (other) purpose even one for which another remedy may exist. The amendment to Art. 226 in 1963 inserting Art. 226 reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. But it is one thing to affirm the jurisdiction another to authorise its free exercise like a bull in a china shop. This court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. This court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect the writ power has by and large been the peoples sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. That is why even an arbitrator appointed under sec. 10-A of the Industrial Disputes Act 1947 was held to be a part of the methodology of the sovereigns dispensation of justice so as to be treated as a statutory tribunal amenable to judicial review. English precedents were adopted not on the ground that they were binding but because the jurisprudence of judicial review in this branch was- found to be substantially common for Indian and Anglo- American systems and so Halsburys passage explaining patent error of law on the record had been adopted as a sound statement of law. The wider emergence of common canons of judicial review was treated as a welcome trend towards a one-world public law. ( 9 ) SIMILARLY in AHMEDABAD MFG. and CALICO PTG. CO V. RAMTAHEL A. I. R. 1972 S. C. 1598 at P. 1603-1604 it was pointed out that in some High Courts Article 227 was utilized for the purpose of securing relief by way of writs or directions in the nature of writs more accurately contemplated by Article 226 of the Constitution (RAMESH V. GANDALAL A. I. R. 1966 S. C. 1445) and in some of this Article was invoked for getting orders of tribunals revised just as sec. 115 of the Code of Civil Procedure was utilized for revision of orders of subordinate Courts: (SURENDER NATH V. STIPHEN COURT LTD. (A. I. R. 1966 S C. 1961 ). Therefore the use of Article 227 as a substitute for Article 226 for seeking a direc- tion in the nature of a writ for quashing the orders of these subordinate tribunals was not approved and it was in terms held that for seeking relief by way of writs or directions in the nature of writs Article 226 was expressly and in precise language designed. The grounds of exercise of supervisory writ jurisdiction were to keep the authorities and tribunals including the Government within their mandated area or the limited bounds or for correcting patent errors of law on the record. (SYED YAKOOB V RADHAKRISHNAN) A. I. R. 1964 S. C. 477 (479-80 ). ( 10 ) NOW after the aforesaid amendment Article 226 (1) has been restricted by the three sub-clauses under Article 226 (1 ). Clause (a) provides for this writ jurisdiction for enforcement of fundamental rights and the original writ jurisdiction is kept intact without any fetter of the existence of another remedy under Article 226 (3 ). Clauses (b) and (c) restrict the wide scope of the jurisdiction for other purposes to the specified pur- pose for redress of any injury by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or by order rule regulation bye-law or other instrument made thereunder where such injury is of a substantial nature; or for redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice. Therefore the jurisdiction in addition to the enforcement of fundamental rights is now restricted to redress of injury (1) in cases where there is contravention of any other Constitutional provision or other statutory provisions including orders rules bye-laws or instruments made thereunder which has resulted in injury of a substantial nature and (ii) where the authority has committed any illegality in its proceedings under any of those Constitutional or the statutory provisions and the illegality has resulted in substantial failure of justice. It is therefore that this remedial writ jurisdiction is for redress of injuries arising from contravention of Constitutional or other statutory provisions or illegalities committed by the authorities acting under the Constitutional or statutory provisions provided the injury in one case is of a substantial nature or the illegality committed by the authority results in substantial failure of justice. It is therefore that this remedial writ jurisdiction is for redress of injuries arising from contravention of Constitutional or other statutory provisions or illegalities committed by the authorities acting under the Constitutional or statutory provisions provided the injury in one case is of a substantial nature or the illegality committed by the authority results in substantial failure of justice. Therefore the emphasis instead of on 6 purposes which was interpreted in STATE ORISSA V. RAM CHANDRA A. I. R. 1964 S. C. 685 (688) to mean that the existence of a right which was said to be illegally invaded or threatened was the foundation of a petition under Article 226 is now on redress of injuries resulting from contraventions of other Constitutional or statutory provisions of law or illegalities committed by the authorities in proceeding thereunder and it is only when such injury is of a substantial nature or results in substan- tial failure of justice that writ jurisdiction can be exercised. This change of emphasis has of course led to the writ jurisdiction being liberated from the technical fetters of the English law in the term patent errors of law on the record because our Constitutional mandate now provides this remedy for full redress of such substantial injuries as a result of contraventions or non-compliance with Constitutional or statutory provis- ions or as a result of illegalities committed by the authorities acting under such provisions when the result is of a substantial failure of justice. In this context it must be borne in mind that Article 227 is also amended by deleting tribunals from its scope of superintendence so that over tribunals there would be proper writ jurisdiction only under Article 226 as envisaged in the aforesaid Calico Mills decision. We need not mention at this stage that Article 227 has not been amended with retrospective effect so as to apply to pending proceedings while Article ?26 has been amended with retrospective effect so as to apply even to the pending proceedings which would have to be considered when the question arises in the context of this writ jurisdiction being exercised against the orders of the tribunals. Besides not only the scope of the writ jurisdiction is restricted by the specified purpose which is substituted in the place of other purposes in clauses (b) and (c) but a further fetter is added under Article 226 (3) that no such petition for redress of injury referred to in sub-clausecs (b) and (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. It is this relevant fetter in Article 226 (3) which has to be examined. ( 11 ) A bare perusal shows that this fetter is not attracted to a petition for enforcement of fundamental rights falling under Article 226 (1) (a) as it is restricted to sub-clauses (b) and (c) only. The second feature which must be borne in mind is that this is a fetter to the entertainment of the neti- tion itself because now the writ jurisdiction for the specified purpose in clauses (b) and (c) of Article 226 (1) has to be exercised if there is no other remedy for such redress provided for by or under any other law for the time being in force. Formerly by a self-limitation the discretion was exercised not to entertain writ petitions when alternative remedy existed but now when a constitutional fetter is created the Court would have no jurisdiction if alternative remedy for such redress is provided for by or under any other law. This being a fetter on the jurisdiction of the Court will have to be strictly interpreted. Even though the words any other remedy had been used it is obvious that any other remedy has to be for redress of the injury for which this writ jurisdiction is conferred and therefore it must be equally adequate or efficacious so that qualita- tively and quantitatively the same relief would be given for redress of the injury to the petitioner. Therefore the adequate efficacious remedy is al- ways implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition. Therefore the adequate efficacious remedy is al- ways implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition. The third important feature is that such a remedy must have been provided for by or under any other law for the time being in force which makes it implicit that this must be a direct remedy specifically provided by or under specific law in force under which the impugned action is taken or order is made. In this connection it would be pertinent to refer to the relevant portion of the speech of the Union Law Minister while moving the Constitution (Forty-fourth Amend- ment) Bill 1976 for consideration in the Rajya Sabha on November 4 1976 Said he: but of course if there is an alternative remedy which is provided in the law under which a particular action is taken or an order is made it is necessary that first that alternative remedy should be exhausted. . . . (Underlining supplied ). This alternative remedy therefore could never be the general remedy of a civil suit which is by way of a collateral attack and which would be available in every case for ultra vires orders unless it is specifically excluded. The ampli- tude of this fetter is made dependent on the existence of the other effective alternative remedy which is in terms provided whether by the specific law or under the subordinate legislation of such law. One thing is certain that such alternative remedy must be specifically provided for. Therefore the amplitude or the fetter would depend on the amplitude such alternative remedy which is provided for direct attack by or under the other law in question and not on any general remedy of a civil suit by way of a collateral attack. ( 12 ) MR. Vakharia vehemently argued that the distinction between a real and a purported order could not exist in the context of this amend- ment under Article 226 (3) because the fetter is all comprehensive once any kind of remedy is shown to exist whether by way of the statutory appeal revision etc. directly or even by a collateral attack in a civil Court. directly or even by a collateral attack in a civil Court. We cannot agree to that contention for the simple reason that although the writ jurisdiction has been restricted by specifying the parti- cular purpose in clauses (b) and (c) for which now the writ jurisdiction could be exercised the grounds for such supervisory writ jurisdiction are still contraventions of Constitutional or other provisions of law including orders rules regulations bye-laws or other instruments made thereunder or the illegalities committed by the authorities acting under those provi- sions. Even this new ground would show that the distinction between a real and a purported order which is an ultra vires order substantively or proced- urally the author if by not remaining within the limited bounds or the man- dated area or because of non-compliance of fundamental essential provisions of law or principles of natural justice which would make such orders null- ities or ex facie without jurisdiction would be all the more material. If in England where the Parliament was supreme and where it had introduced non certiorari clauses in the Act of the Parliament this distinction had been adopted by the house of Lords in the decision in ANISMINIC LTD. V. FOREIGN COMPENSATION COMMISSION (1969) 1 ALL E. R. 208 so that statu- tory tribunals and authorities would be kept within their limited bounds or the mandated area and would not become absolute the same material distinction between a real and a purported order must be adopted when our Constitutional amendment under Article 226 (3) has not introduced the non-certiorari clause but has only introduced a mere fetter as to the stage at which the writ jurisdiction should be exercised after exhausting the alternative efficacious normal remedy under the law. ( 13 ) IN UNION OF INDIA V. TARACHAND GUPTA and BROS. A. I. R. 1971 S. C. 1558 at p. 1565 when a similar question arose as to whether a civil suit was barred because the decisions or orders of the customs authorities in appeal under the Sea Customs Act were made final under sec. 188 the same test of a real and a purported determination evolved in the Anisminic Ltd. case (supra) was in terms approved and applied by our Supreme Court as under:a determination which takes into consideration factors which the officer has no right to take into account is no determination. 188 the same test of a real and a purported determination evolved in the Anisminic Ltd. case (supra) was in terms approved and applied by our Supreme Court as under:a determination which takes into consideration factors which the officer has no right to take into account is no determination. This is also the view taken by Courts in England. In such cases the provision excluding jurisdiction of civil Courts cannot operate so as to exclude an inquiry by them. In ANISMINIC LTD. V. THE FOREIGN COMPENSATION COMMISSION (1969) 1 ALL E. R. 208 = 2 WER 163 Lord Reid at pages 213 and 214 of the Report stated as follows:it has sometimes been said that it is only where a tribunal acts without jurisdic- tion that its decision is a nullity. But in such cases the word jurisdiction has been used an a very wide sense and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do some- thing in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which under the provi- sions setting it up it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without com- mitting any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without com- mitting any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. To the same effect are also the observations of LORD PEARCE AT PAGE 233. R. V. FULHAM HAMMERSMITH AND KENSINGTON RENT TRIBUNAL (1953) 2 ALL E R 4 is yet another decision of a tribunal properly embarking on an enquiry that is within its jurisdiction but at the end of its making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case. THE principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion however is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word jurisdiction has both a narrow and a wider meaning. In the sense of the former it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act and therefore in excess of its jurisdiction. Accordingly a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act and therefore in excess of its jurisdiction. Therefore where the order in that case was in non-compliance with the relevant Customs entry and where the Customs Officer who had embarked upon an enquiry with jurisdiction had during the course of the enquiry acted in excess of jurisdiction by taking into consideration something which he had no right to take into account it was held that the bar of the civil suit did not apply to such orders in non-compliance with the statutory provi- sions as such cases were covered by the exceptions laid down in Mask and Co. s case 67 Ind. App. 222=a. T. R. 1940 P C. 105. It was pointed out that the order of the Collector of Customs was not one in respect of which the Collector was invested with jurisdiction and to such orders the bar excluding the jurisdiction of civil Courts was not applicable. The order being a nullity even Article 14 of the Limitation Act could not be appl- ied to hold the suit time-barred. ( 14 ) AT this stage it would be proper to consider why this distinction was always kept in mind by the courts even when a self- limitation was evolved not to entertain writ petitions when alternative remedy existed. In BHOPAL SUGAR INDUSTRIES V. SALES TAX OFFICER BHOPAL A. I. R. 1967 S. C. 549 it was held that the High Court did not exercise the writ jurisdiction under Article 226 by entertaining petitions against the order of taxing authorities when the statute under which tax is sought to be levied provi- des a remedy by way of an appeal or other proceeding to a party aggrieved and thereby by-pass the statutory machinery. That was not to say that the High Court would never entertain a petition against the order of the taxing officer. That was not to say that the High Court would never entertain a petition against the order of the taxing officer. The High Court had undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the stat- ute defies Constitutional restrictions or infringes any fundamental rights or whether the taxing authority has arrogated to himself power which he does not possess or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in appropriate cases determine the exigibility to tax of transactions the nature of which is admitted but the High Court normally does not proceed to ascertain the nature of a transaction which is alleged to be taxable. The High Court leaves it to the tax-payer to obtain an adjudication from the taxing authorities in the first instance. ( 15 ) REITERATING the same view in CHAMPALAL V. COMMISSIONER OF INCOME-TAX WEST BENGAL A. I. R. 1970 S. C. 645 at p. 647 it was emphasized once more that the Income-tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. The case was not one where no notice of hearing was served but only of inadequate opportunity of making representation and it was held that where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which was ex facie with jurisdiction. It was in terms held that a petition for a writ of certiorari may lie to the High Court where the order is on the face of it erroneous or raises question of jurisdiction or of infringe ment of fundamental rights of the petitioner- Therefore such orders ex facie without jurisdiction or in violation of fundamental principles of judicial procedure which were not real but purported orders as explained above. were treated on par with cases of invasion of fundamental rights and the existence of alternative remedy was held not to come in the way of entertaining writ petitions. ( 16 ) THE underlying principle for this approach is clearly explained in U. P. STATE V. MOHD. NOOH A. I. R. 1958 S. C. 86 AT P. 94 by holding that these are errors irregularities or illegalities touching jurisdiction or procedure committed by an inferior Court or tribunal of first instance which are so patent and loudly obtrusive that they leave on the decision an indelible stamp of infirmity or vice which could not be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdict- ion or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior courts sense of fairplay the superior Court would quite properly exercise its power to issue the prerog- ative writ of certiorari to correct the error of the Court or tribunal of first instance even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it it confirmed what ex facie was a nullity for reasons aforementioned. That approach was all the more appropriate in case of departmental tribunals where the remedy against such glaring lapse of lack of power was almost futile. ( 17 ) THAT is why right from the earliest decision of the Full Bench in ABDULLAMIYAN ABDULREHMAN V. THE GOVERNMENT OF BOMBAY 44 BOM. L. R. 577 at p. 590 where Beaumont C. J. spoke for the Full Bench the same approach has been adopted on a similar question of bar under sec. 11 of the Bombay Revenue Jurisdiction Act 1876 which barred the entertainment of a civil suit unless the plaintiff proved that he had presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such suit it was possible to present. 11 of the Bombay Revenue Jurisdiction Act 1876 which barred the entertainment of a civil suit unless the plaintiff proved that he had presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such suit it was possible to present. At page 590 the Full Bench held that it was an established principle that where an authority which purports to pass an order is acting without jurisdiction the purported order is a mere nullity as Sir Lawrence Jenkins puts it it is mere waste paper; and it is not necessary for anybody who objects to that order to apply to set it aside. He can rely on its invalidity when it is set up against him although he has not taken steps to set it aside. Such an order without jurisdiction is a nullity and it cannot give rise to any right whatever not even to a right of appeal. Such an invalid purported order does not therefore create a bar under sec. 11 of the Bombay Revenue Jurisdiction Act. ( 18 ) IN RAMRAO V. STATE OF BOMBAY A I. R. 1963 S. C. 827 (834) even the Supreme Court in the very same context of sec. 11 of the Bombay Revenue Jurisdiction Act 1876 applied the test whether the statute in question had provided an appeal against the act of the revenue authority in question. Where therefore the auction sale was not merely irregular but only a purported sale for the nominal bid offered by the Mahalkari authorized by the Collector there being no specific provision of appeal and there being no decision which was capable of appeal within the meaning of sec 203 of the Bombay Land Revenue Code against such authorization of the Mahalkari by the Collector to offer such a bid the bar under sec. 11 was not attracted for entertaining the suit against such a purported sale. ( 19 ) EVEN under secs. 11 was not attracted for entertaining the suit against such a purported sale. ( 19 ) EVEN under secs. 35 and 36 of Central Excise and Salt Act 1944 itself Bhagwati J. as he then was in UNION OF INDIA V. NARENDRA (1968) 9 G. L. R. 261 took the same view that those sections did not exclude the jurisdiction of Civil Court where the action of the Excise Officer was outside the statute as for example where the Excise Officer insisted on compliance With the provisions of the Act or the Rules in case of goods which were not excisable under the Act and therefore not within the scope and ambit of the Act and the Rules. It was held that the finality given by secs. 35 and 36 was only for the purposes of the Act and it did not make valid an action unwarranted by the Act. At page 277 it was further held that if there was no provision in the Act or the Rules empowering the Excise Officers to determine except in a proceeding for adjudication of penalty and confiscation under Rule 210 that a manu- facturer was liable to obtain licence for carrying on the business of manufacturing the goods such a decision or order being not under the Act or the Rules so as to be appealable under sec. 35 it would not create any bar to the entertainment of a civil suit. ( 20 ) MATHEW J. as he then was in PONKUNNAM TRADERS V. ADDITIONAL INCOME-TAX OFFICER (1972) 83 I. T. R. 508 took the same view that where a decision is null and void by reason of want of jurisdiction it could not be cured by any appellate proceedings and therefore failure to take advan- tage of that somewhat futile remedy did not affect the nullity inherent in the challenged decision. The party affected may appeal against such decision but he was not bound to do so because he was at liberty to treat the Act as void. . ( 21 ) EVEN in HUSEIN MIYA V. CHANDUBHAI (1953) 55 BOM. The party affected may appeal against such decision but he was not bound to do so because he was at liberty to treat the Act as void. . ( 21 ) EVEN in HUSEIN MIYA V. CHANDUBHAI (1953) 55 BOM. L. R. 946 (949) the Division Bench consisting of Chagla C. J. and Dixit J. in terms held on principle that merely because a statute provides for a right of appeal the party against whom the order is made is not bound to appeal although the order made is a nullity. If the order is a nullity the party is entitled to ignore it to treat it as waste paper and to go to a civil Court for a declaration that the order is a nullity and it could not prejudice his rights. ( 22 ) THEREFORE the principle which emerges from these decisions is that when the petitioner is to be asked to exhaust his alternative remedies pro- vided under the Act before entertaining the writ petition this distinction would always be material where the order is a nullity as being ex facie without jurisdiction or due to non-compliance with the provisions of the Act or the essential principles of justice or on any other ground as explained in Tarachand Guptas case or Bhopal Sugar Industries case or Mohd. Noohs case (supra) it is a purported order or a nullity. In such a context the alternative remedy would be a futile remedy because it did not affect the inherent nullity in the challenged decision which would result in the material distinction that the party may appeal against such decision but he was not bound to do so. ( 23 ) AS pointed out in DANA NATHU V SUBDIVISIONAL MAGISTRATE RAJKOT (1973) 14 G. L. R. 209 (213) if the order of the executive authority is an ultra vires order it would be a nullity and even if an appeal is filed the order confirmed in appeal would also be a nullity. Therefore in such cases the challenge is on the ground that the order is an ultra vires order the question of exhausting alternative remedy could hardly arise as the petitioner could straightway seek remedy of judicial review. Therefore in such cases the challenge is on the ground that the order is an ultra vires order the question of exhausting alternative remedy could hardly arise as the petitioner could straightway seek remedy of judicial review. These settled principles would be all the more applicable after this Constitutional fetter where the emphasis is now on full redress of injuries for which specified purpose only this extra-ordinary remedy is created so that in such sub- stantial injuries consisting of non-compliance with other Constitutional or statutory provisions or illegalities which go to the root so as to result in failure of justice when committed by authorities and tribunals acting under those provisions it would be a poor consolation to a citizen to be told in cases of such purported orders to avail of such remedy which he is not bound to exhaust and which would not be efficacious at all but a futile remedy in case the order is confirmed as it would still remain a nullity. ( 24 ) MR. Vakharia however pointed out that the term jurisdiction for the purpose of judicial review is given such a wide meaning in the Anisminic case (supra) on public policy grounds to reach cases of injustice by making a distinction of such purported orders when there was lack of power but that distinction could not now be pressed in service when Article 226 (1) creates a distinction between clause (a) where only invasions of fundamental rights are contemplated which are outside the scope of this fetter in Article 226 (3) and when the fetter is laid down in all other cases falling under clauses (b) and (c) when the writ jurisdiction is exercised for the specified purpose of redress of injuries only. Even there the amplitude of the constitutional fetter is co-extensive with providing the direct remedy of challenge. Therefore in each case the provision relating to relevant normal statutory remedy for direct attack provided under the other law in force would have to be examined to find out whether the term juris- diction would have to be interpreted in the narrow or the wider sense so as to provide direct attack even in cases of purported orders by making an exhaustive code leaving no room for collateral activity. ( 25 ) IN taxation statutes like the one which fell for consideration in KAMALA MILLS V. BOMBAY STATE A. I. R. 1965 S. C. 1942 namely sec. 20 of the Bombay Sales Tax Act 1946 the seven Judges Bench in terms held that sec. 20 was so wide as to take in all assessments made or purported to have been made under the Act and therefore even purported orders having been protected by that provision such purported assessments could not be called in question in any civil Court. At page 1948 it was in terms held on an examination of the relevant provisions of the Bombay Sales Tax Act 1946 that the scheme was so exhaustive that all questions per- taining to the liability of the dealers to pay assessment in respect of their transactions had been expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. The whole activity of assessment beginning with the filing of the return and ending with an order of assessment completely fell within the jurisdiction of the appropriate authority and no part of it constituted a collateral activity not specifically and expressly included in the jurisdiction of the appropriate authority as such. Therefore the finding of the appropriate authority whether the transaction was taxable or not was not a finding on a coll- ateral fact but on a jurisdictional issue and therefore even the decision of the appropriate authority that a transaction which was an outside sale within the meaning of Article 286 of the Constitution as it was in 1956 was not an outside sale and sales tax was levied thereon the decision of the appropriate authority could not be said to be without jurisdiction so as to be outside the purview of the wider protective umbrella of sec. 20 of the Act. 20 of the Act. ( 26 ) EVEN in H. M. TRIVEDI V. V. B. RAJU A. I. R. 1973 S. C. 2602 at 2607-8 such wide amplitude was held to be of the election laws in question for preparation of electoral rolls and an intention was inferred to withhold a judicial review by treating even the question of ordinary residence for the purpose of entering a persons name in the electoral roll as a decision on a jurisdictional fact within the exclusive jurisdiction of the registering officers and the appellate authorities so that there would be no question of any judicial review by any collateral attack either in a civil Court or even before an election tribunal. In that decision the distinction was noted of cases even in election in election matters as in BAIDYANATH PANJIAR V. SITA RAM MAHTO A. I. R. 1970 S. C. 314 which took the view that violation of sec. 23 (3) of the 1950 Act in entering or deleting the names of persons in the electoral rllos after the last date for deleting the name relates to lack of power. Such exceptional cases where the Act is made a complete Code so that the authority is conferred a wide jurisdiction by making all activities as falling within its jurisdiction and not as collateral even such purported orders would not be nullities and they would be subject to direct challenge under the normal remedy under the Act and that is why there would be no scope of challenge by collateral attack in a civil Court or in writ jurisdi- ction without exhausting the wide obligatory normal remedy provided under the Act. On the other hand in cases like the present one under sec. 25 of the Central Excise and Salt Act 1944 where appeal is provided by the person aggrieved only against decision or order passed by a Central Excise Officer under the Act or the Rules made thereunder the amplitude of the appeal remedy would not be widended because the appeal remedy is obligatory for decisions or orders passed under the Act and not against purported orders which would be nullities and which could not be cured in appeal as only a nullity would be confirmed in appeal. ( 27 ) THE aforesaid discussion clearly reveals that every Act would have to be examined when such a question of the existence of alternative remedy arises and it would have to be found out as to what is the amplitude of the normal Act remedies for appeal or revision so that the question of real or purported order would be decisive. If the Act remedy is so wide as to cover even purported orders so that no part of the activity of the authority is a collateral activity the Act having provided for direct remedies to such a wide extent that remedy would have to be first exhausted. On the other hand where the Act remedies are not of such wide amplitude but only for orders under the Act in cases of such purported orders the appeal remedy could not come in the way of the petitioner as it could not be said to have been provided for such purported orders which are null and void and which it would not be obligatory for the petitioner to exhaust for the simple reason that such an appeal remedy would not be able to cure the defect even if the appeal confirms the original order bearing this indelible mark of nullity. ( 28 ) SIMILARLY in cases where the question raised is of legislative competence or of excessive delegation the authorities created by the Act being creatures of the statute such questions of ultra vires of the provi- sions of the Act would be foreign to the scope of that jurisdiction and they could not dispose of such questions of ultra vires of the provisions of the statute orders rules or instruments made thereunder as per the settled legal position after the decision in VENKATARAMAN and CO. V. STATE OF MADRAS A. I. R. 1966 S C. 1089. The same would be true of the orders which are totally de hors the Act and therefore ex facie without juris- diction even in the narrow sense as complete nullities which could be ignored as creating no rights and obligations whatever. V. STATE OF MADRAS A. I. R. 1966 S C. 1089. The same would be true of the orders which are totally de hors the Act and therefore ex facie without juris- diction even in the narrow sense as complete nullities which could be ignored as creating no rights and obligations whatever. The amplitude of the appeal provision would be a relevant consideration in cases of pur- porated orders without jurisdiction as interpreted in the wider sense as explained in the Anisminic decision as aforesaid These are only illustrative cases which we have considered to bring out the true scope and ambit of this fetter created under Article 226 (3) for considering this question of abatement of such writ petitions and therefore these illustrations are not intended to be exhaustive. ( 29 ) FINALLY the last question which remains is as to cases of enforce- ment of fundamental rights falling within Article 226 (1) clause (a) where there is no fetter of this alternative remedy for entertaining such a petition under Article 226 (3 ). That question is no longer res integra because on the identical provision in Article 32 the question is concluded by the decision in COFFEE BOARD BANGALORE V. JOINT COMMERCIAL TAX OFFICER A. I. R. 1971 S. C. 870 at pages 885-876 where Their Lordships laid down the ratio as under:- in SMT. UJJAM BAIS CASE A. I. R. 1962 S. C. 1621 the question was whether assess- ment of Sales Tax under a valid Act was open to challenge under Art. 32 on the ground of misconstruction of the Act or a notification under it. It was held that the answer was in the negative. That case has given some trouble in view of the different opinions expressed in it. It is therefore necessary to state simply the pro- positions which are settled by this Court. The ruling recognises the existence of a right to move this Court under Art. 32 where the action is taken under an ultra vires statute or where although the statute is intra vires the action is without jurisdiction or the principles of natural justice are violated. Errors of law or fact committed in the exercise of jurisdiction founded on a valid law do not entitle a person to have them corrected by way of petitions under Art 32. Errors of law or fact committed in the exercise of jurisdiction founded on a valid law do not entitle a person to have them corrected by way of petitions under Art 32. FURTHER proceeding at page 877 it is held that the Court would limit the petitioner to establishing a breach of fundamental right and would not allow a petitioner to use the provisions of Article 32 to do duty as an appeal. A clear enough case as laid down in Ujjam Bais case must be made out. A threat to property unbacked by a valid law or a want of jurisdiction or a breach of the principles of natural justice must be clearly made out to entitle one to the assistance of this Court. If that is success- fully done then the provisions for other remedies do not stand in the way. It should be noted that on the preliminary question as to the writ petition being maintainable under Article 32 all the five Judges had agreed even though on merits when the majority view was to dismiss the petitions there was a difference. This decision settles the legal position so far as the questions of entertainment of such petitions is concerned on the ground of invasion of fundamental rights where the aforesaid ratio would clearly conclude the question. ( 30 ) THEREFORE it is in the light of these principles that we will have to answer the question of abatement raised before us by the learned coun- sel for the petitioners The petitioners must succeed on both the questions raised by Mr. Sorabji. The present group of petitions would clearly fall within the Coffee Board ratio as petitions for enforcement of fundamental rights to hold property under Article 31 (1) as prima facie it is shown that the excise authorities are seeking to enforce this demand of excise duty arrogating a jurisdiction to themselves to change the settled basis of excise levy for this blended yarn for all these years by acting on the aforesaid Trade Notice issued by the Deputy Collector in breach of the principles of natural justice. At this stage we have to see only the prima facie case as per the demurrer being clearly made out of want of jurisdi- ction or breach of principles of natural justice to entitle the petitioner to the assistance of this Court because of the actual threat to their funda- mental rights of holding the property under Article 31 (1 ). Without even waiting for the final process of adjudication the authorities are insisting on the compliance with the Trade Notice by changing the settled basis of the present excise levy. In any event the petitioners must succeed even on the second question because this would be a tax without authority of law so as to contravene Article 265 the other provision in the Constitution and the challenge is on the ground of this action being ex facie without juri- sdiction and in breach of the principles of natural justice by seeking to implement such executive instructions. ( 31 ) MR. Vakharia vehemently argued that the questions really of dis- puted facts which could be decided on evidence before the taxing authorities and the Deputy Collector having only issued guidelines which were not legally binding on the assessing authority the petition is premature till the alter- native remedy is exhausted under the Act. As earlier pointed out sec. 35 admittedly does not provide any appeal against such a made Notice. Even Mr. Vakhairia does not dispute that fact that such a Trade Notice is not appealable under sec. 35. Even though at the earlier stage Mr. Vakharia was under the impression that the Deputy Collector could issue such an executive instruction under Rule 233 ultimately he agreed that in view of Rule 2 (22) no such executive instruction could be issued by the Deputy Collector because only the Collector in Gujarat had such a power. ( 32 ) IN ORIENT PAPER MILLS V. UNION OF INDIA A. I. R. 1969 S. C. 48 at page 51 Their Lordships in terms held- if the power exercised by the Collector was a quasi judicial power-as we hold it to be-that power cannot be controlled by the directions issued by the Board. No authority however high placed can contro l the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. No authority however high placed can contro l the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule the only instruction that the Board can issue is that relating to administrative matters otherwise that rule will have to be considered as ultra vires sec. 35 of the Act. Mr. Vakharia is right that the assessing authority would have to reach its decision without the constraint of any such Trade Notice as even under Rule 233 what could be issued would be administrative instructions and not such a direction to change the basis of assessment: The question at this stage is that a prima facie case does exist when such an outsider like the Deputy Collector who was not an original assessing authority has issued such a direction in the form of a Trade Notice to all units stating that on this question it was decided that the accounting of the yarn in R. G. I Register shall be made at the spindle point but for E. B. 4 Register or assessment of duty the weight on the yarn at the stage of cone bobbins and beams etc. should be taken into account. should be taken into account. The Superintendent who is the assessing authority even in the letter at Annexure B dated August 28 1976 has invited the attention of the mills to this Trade Notice and as per the direction in paragraph 2 of the said Trade Notice has directed accounting of the yarn in R. G. I. Register adding that for E. B. 4 Register or assessment of duty the weight on the yarn at the stage of cones bobb- ins and beams etc. should be taken into account and has requested the mills to maintain the E. B. 61 Register immediately. Even in Annexure B the Superintendent mentions that he had already directed that for assess- ment of this yarn the weight of the yarn should be taken at cones beams bobbins stage etc. and he objected to the duty being paid on the yarn at spindle stage and directed to adopt this changed basis. Therefore the peti- tioners property is sought to be reached by these directions. The execu- tive Officers even though in the exercise of such quasijudicial functions that in the present case immediate implementation has started of this not ice giving the right to move this Court to the petitioners because of the actual threat to their property rights before even they are heard ( 33 ) AS pointed out in UNION OF INDIA V. TATA IRON and STEEL CO. A. I. R. 1975 S. C. 769 at page 772 it is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip or skelp it may be possible for the autho- rities to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test. That would not be possible when there is no identifiable standard. It was pointed out that the best way is to define the product for the purpose of excise duty in appropriate terms demarcating clearly the distinction between the two terms. The absence of any identifiable standard it was pointed out would give rise to the scope for arbitrary assessment at the hands of different authorities. It was pointed out that the best way is to define the product for the purpose of excise duty in appropriate terms demarcating clearly the distinction between the two terms. The absence of any identifiable standard it was pointed out would give rise to the scope for arbitrary assessment at the hands of different authorities. It was further pointed out that in such cases if there were no definite tests by which the particular article could be held to fall under one item and not under the other there would be no question of two views being possible so that if a reasonable view is taken there would be no justifiable interference if a writ jurisdiction. It was in terms pointed out that the question in such cases is completely a different question as to whether an identifiable test reasonably capable of distinguishing skelp from the strip existed. In the present case the question is of excise duty for blended yarn under Tariff Item 18-E and the question is as to which standard should be adopted for its assessment as both the parties are agreed that yarn remains yarn and the dispute is as to whether yarn should be assessed at the spindle point or after its weight has increased in sizing. The eloquent contrast of Entry 18-E and the artificial definition of manu- facture has been relied upon and the fact has been that all these years right from 1972 when this Entry 18e came in existence for the first time the authorities themselves have adopted the basis of taxing this commodity only at the spindle point. Therefore a prima facie case is made out both of invasion of fundamental rights and the order of the authorities being ex facie without jurisdiction or a purported order when even without hearing the petitioners as per the essential principles of natural justice the addi- tional excise duty is sought to be recovered from them. Therefore on both the grounds urged by Mr. Sorabji the petitioners were entitled to approach this Court at this stage and the fetter created under Article 226 does not come in the way of the petitioners so far as the present group is concerned We are clarifying that our observations are only to determine the prime facie case and they should not be construed as being on the merits of the question before us. ( 34 ) WE therefore hold that all these petitions do not abate as cont- ended by the respondents-authorities and the petitions shall now go before the Division Bench for final disposal accordingly. Costs shall be costs in the petitions. Opinion accordingly. .